On Petition for Review of an Order of the Benefits Review Board, United States Department of Labor.
Wood, Jr., and Easterbrook, Circuit Judges, and Will, Senior District Judge.*fn*
WOOD, JR., Circuit Judge.
Petitioner, the director of the Department of Labor's Office of Workers' Compensation Programs ("Director"), seeks review of an order of the Department of Labor's Benefits Review Board ("Review Board") granting benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. (1982) to respondent Aleen Ball. The Review Board, relying on its previous decision in Fletcher v. Director, OWCP, BRB No. 83-790 BLA, slip op. (July 7, 1986) (en banc),*fn1 reversed the decision of an administrative law judge ("ALJ") through its order. The ALJ had denied benefits to Mrs. Ball because she failed to establish that she was financially dependent upon her former husband, a miner, at the time of his death under the applicable statutory and regulatory definitions of the Black Lung Benefits Act.
Because we review an action taken by an administrative agency, the Department of Labor, our standard of review is governed by the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 551 et seq. (1982). The parties do not dispute the facts. Therefore our review is limited to interpreting statutory and regulatory language, something we do as a matter of law. E.g., Lorenz v. Sauer, 807 F.2d 1509, 1511 (9th Cir. 1987). For matters of law, the APA mandates de novo review. 5 U.S.C. § 706 (1982) ("To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law. . . ."); FTC v. Indiana Federation of Dentists, 476 U.S. 447, 106 S. Ct. 2009, 2015-16, 90 L. Ed. 2d 445 (1986).
A reviewing court, however, will temper that general mandate of de novo review by according some deference to the agency's legal interpretations. The reviewing court will defer to the agency's interpretation of the agency's own regulation "'unless [the interpretation] is plainly erroneous or inconsistent with the regulation.'" Udall v. Tallman, 380 U.S. 1, 16-17, 13 L. Ed. 2d 616, 85 S. Ct. 792, 801 (1965) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945)); ITEL Corp. v. United States Railroad Retirement Board, 710 F.2d 1243, 1244 (7th Cir. 1983) ("A 'reasonable basis' test is appropriate when passing upon an agency's construction of the statutes which it administers.").
A question arises, however, as to which part of an agency the deference should be granted when different parts of the agency disagree as to the proper legal interpretation of a regulation. In this case, for example, the Director takes the view that the Department of Labor's regulations should be construed to deny benefits to Mrs. Ball, while Mrs. Ball relies on the Review Board's interpretation of the regulations that she is entitled to benefits. But as we have previously noted, "the [Review] Board's interpretation of the [Black Lung Benefits] Act is 'not entitled to any special deference from the courts.'" Peabody Coal Co. v. Blankenship, 773 F.2d 173, 175 (7th Cir. 1985) (quoting Potomac Electric Power Co. v. Director, 449 U.S. 268, 278 n.18, 66 L. Ed. 2d 446, 101 S. Ct. 509, 515 n.18 (1980)). Rather, a reviewing court "shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792, 801 (1965). In the Department of Labor the Director is responsible as a policy maker for the implementation and administration of the regulations and his interpretation, not the Review Board's, of the regulations will receive deference. See Potomac Electric Power Co. v. Director, 449 U.S. 268, 278 n.18, 66 L. Ed. 2d 446, 101 S. Ct. 509 (1980).
Mrs. Ball was married to Robert Ball, a miner, in 1931 and was divorced from him in 1954. The divorce decree ordered Mr. Ball to pay $10 per week for the support of a sixteen-year-old child. Mr. Ball also voluntarily contributed substantially to Mrs. Ball's support during the years immediately following the divorce. Thereafter Mr. Ball's contributions to Mrs. Ball decreased until the early 1970s when Mr. Ball became disabled by black lung disease and his contributions to Mrs. Ball ceased altogether. After Mr. Ball retired he began receiving social security benefits in 1972. He also received black lung benefits. In 1973 Mrs. Ball became eligible for social security old-age retirement benefits based on Mr. Ball's earnings record as a miner. Mr. Ball died in 1975. Since the time of Mr. Ball's death, Mrs. Ball has received social security benefits as a surviving divorced spouse. These social security benefits have been Mrs. Ball's sole means of support since she began receiving them.
In addition to receiving the social security benefits, Mrs. Ball twice sought benefits in 1978 under the Black Lung Benefits Act as the surviving divorced wife of Mr. Ball. The Department of Labor denied Mrs. Ball's request for benefits both times. Mrs. Ball demanded and received a formal hearing before an ALJ. The ALJ also denied benefits. Mrs. Ball appealed the decision and order of the ALJ to the Review Board. The Review Board reversed and awarded benefits to Mrs. Ball.
There is only one issue that confronted the ALJ and the Review Board that we consider now on appeal. That issue is whether Mrs. Ball's social security benefits, which she receives as a surviving divorced wife, qualify as support from a miner under the Black Lung Benefits Act.
The Black Lung Benefits Act provides benefits to, among other recipients, the widows of coal miners who are totally disabled at the time of death by pneumoconiosis.*fn2 30 U.S.C. § 922 (a)(2) (1982). A widow is defined in the Black Lung Benefits Act as, among other definitions, a "surviving divorced wife." 30 U.S.C. § 902(e) (1982). A surviving divorced wife is not defined in the Black Lung Benefits Act. Instead, the Black Lung Benefits Act takes its definition of a surviving divorced wife from the Social Security Act. 30 U.S.C. § 902(e)(1982). Under the Social Security Act, "the term 'surviving divorced wife' means a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 10 years immediately before the date the divorce became effective." 42 U.S.C. § 416(d)(2)(1982). Mrs. Ball was divorced from Mr. Ball, who died in 1975. The Balls were married in 1931 and divorced in 1954, a period of twenty-three years. Thus, Mrs. Ball qualified as a surviving divorced wife under the Social Security Act's definition and thereby derivatively under the Black Lung Benefits Act.
To recover benefits under the Black Lung Benefits Act, a surviving divorced wife must show that she was financially "dependent on the miner," 20 C.F.R. § 725.217(a)(1986), by demonstrating that she falls within one of three categories: (1) a widow who "was receiving at least one-half of her support, as determined in accordance with regulations prescribed by the Secretary, from the miner;" (2) a widow who "was receiving substantial contributions from the miner (pursuant to a written agreement);" or (3) a widow for whom "there was in effect a court order for substantial contributions to her support from the miner at the time of his death." 30 U.S.C. § 902(e)(1982).
Mrs. Ball did not receive substantial contributions from Mr. Ball pursuant to a written agreement. Neither was she entitled to substantial contributions for her own support from Mr. Ball pursuant to a court order in effect at the time of Mr. Ball's death -- the 1954 divorce decree had ordered support for a teenaged child, not for Mrs. Ball. Moreover, any transfer of money under that divorce decree would have ceased when the child became an adult, an event that would have occurred long before Mr. Ball's death in 1975. Consequently, Mrs. Ball potentially qualifies under only one of the three categories of surviving divorced wives entitled to benefits. That one category requires Mrs. Ball to have been "receiving at least one-half of her support, as determined in accordance with regulations prescribed by the Secretary, from the miner." 30 U.S.C. § 902(e) (1982). Mrs. Ball argues that her receipt of social security benefits resulting from her husband's employment satisfies this requirement of financial dependency. The Director contends that it does not.
To determine whether Mrs. Ball was receiving at least one-half of her support from Mr. Ball, the Black Lung Benefits Act directs us to look at the Secretary of Labor's ...